[T]he former president's rage is still so great that even loyal allies are shocked by his patronising attitude to Mr Obama, and believe that he risks damaging his own reputation by his intransigence....

[One] source said that the former president has kept his distance because he still does not believe Mr Obama can win the election....

It has long been known that Mr Clinton is angry at the way his own reputation was tarnished during the primary battle when several of his comments were interpreted as racist.

But his lingering fury has shocked his friends.... "He's been angry for a while. But everyone thought he would get over it. He hasn't. I've spoken to a couple of people who he's been in contact with and he is mad as hell.

"He's saying he's not going to reach out, that Obama has to come to him. One person told me that Bill said Obama would have to quote kiss my ass close quote, if he wants his support....

"Bill Clinton knows the party will unite behind Obama, but he is telling people he doesn't believe Obama can win round voting groups, especially working-class whites, in the swing states," the strategist said.

Well, that's all very juicy... but isn't it interesting that we're hearing this just as Hillary and Obama are making their big public show of unity?

Both statements are so long that it's hard to match up all the elements and find what is supposed to be a contradiction. (I always wonder why we find Obama so exciting when his rhetorical method is often to bore us to the point of inattention.)

Morrissey says:

Yesterday’s assertion by Barack Obama that he never said the DC gun ban overturned by the Supreme Court was constitutional or that he supported it became the latest in his flip-flops to be exposed by a simple review of the videotape record.

Let's look at the text. Obama's June 26th statement is:

I believe in the Second Amendment as being an individual right and have said that consistently. I also think that individual right is constrained by the rights of the community to maintain issues [sic] of public safety. I don't think those two principles are contradictory and in fact what I have been saying consistently is what the Supreme Court essentially said today. The D.C. law may have been struck down, but they also affirmed the right for local communities to engage in background checks and other common sense laws that most lawful gun owners would agree with. And so I think that we can move beyond some of the conflicts on this issue, make sure that law-abiding gun owners have their rights respected, and at the same time, make sure that we don't see the kinds of murder and devastation that we've seen on the streets of so many of our cities.

What did Morrissey miss? In the new video Obama never says that that he thought the Supreme Court was right when it said that the D.C. law was unconstitutional. He said he believed the individual rights theory of the Second Amendment. He says that there can be an individual right and, at the same time, "common sense" safety laws. He says this is "essentially" the position the Supreme Court took. So there is a core meaning of the Supreme Court case that he agrees with. Period. Next, he states that "The D.C. law may have been struck down," but he does not say that he agrees with that part of the decision. He does not say that that the majority got the balance right when it decided how forceful the individual right was when balanced against the safety interests of the community.

In the older video, Obama is asked about the D.C. ban, and he states the same idea that reasonable regulations can coexist with respect for gun rights. He's asked about the D.C. law, but he never states that it's constitutional, and in any case, he never mentions the part of the law that the Supreme Court ultimately found unconstitutional. He talked about background checks and illegal guns on the street, not guns kept in the home for self-protection.

In neither video clip does he say whether he thinks there is a Second Amendment right to have a unlocked handgun in the home for self-defense.

There is no contradiction!

YouTube — this thing Morrissey thinks Obama doesn't get — can be used to put up videos along with jabbing, mocking, false assertions about what they say. I think it's Morrissey who doesn't get YouTube because he doesn't realize that bloggers will actually watch those video clips and examine the fit between transcript and your assertions and tell you when you are flat wrong.

ADDED: Let me add that I think it is most likely that Obama does agree with the dissenting opinions in the Supreme Court. Also, I do recognize that in the older video, Obama seems to go along the questioner's statement that the D.C. law is constitutional. But the questioner doesn't specify the part of the law that the Court struck down — that is, the possession of an unlocked handgun in the home — and that Obama goes on to speak positively about the use of guns for protecting your family.

Where Morrissey is most plainly wrong is in saying that the new video shows him saying that the D.C. law was unconstitutional. He does not.

Now, he is being cagey. The interviewer should have had the wits to ask a follow-up: Do you think the Court was right to say there is a Second Amendment right to keep an unlocked handgun in the home? I think he would probably have given a cagey answer even to that, but the fact is that the video shows no attempt to pin him down.

Another follow-up question is: If you are elected President and have the opportunity to appoint a Supreme Court Justice, will you nominate someone who interprets the Constitution like Justices Stevens, Souter, Ginsberg, and Breyer, who found no right to keep an unlocked handgun in the home, or someone like Scalia, Roberts, Kennedy, Thomas, and Alito, who found such a right? Could someone ask him that?

Well, you know, what I've consistently said is that I believe that the 2nd Amendment means something, that it is an individual right, and that's what the Supreme Court held. So I agree with that aspect of the opinion. What I've also said is that every individual right can be bound by the interests of the community at large. And the Supreme Court agreed with that as well.

It looks to me that the D.C. handgun ban overshot the runway, that it went beyond constitutional limits. But it doesn't mean that local communities can't, you know, pass background checks, that they can't make sure that they're tracing guns that have been used in crimes to find out where they got them from. So there's still room for us to, I think, have some common-sense gun laws that are also compatible with the 2nd Amendment. And the key is to try to stop using this as a wedge issue and let's figure out an intelligent way where we can stop having kids being murdered on the streets of American cities while making sure that law-abiding gun owners are protected in their rights.

(I'm using the transcript from RCP.) So Obama finally does throw his lot in with the majority — using very mild language. It's not a terrible violation of rights, but just an accidental misjudgment of the line between what government can and can't do — that is, it "looks" as thought the government went too far. If someone asks him, why did he seem to say it was constitutional last winter, I think I know what he'll say. (A lawprof knows lawprofitude.) He'll say that from his perspective at the time it looked as though the government had hit the runway, but it's a difficult line, and with the detailed elaboration provided by the Supreme Court, he understands the perspective that sees the runway as having been overshot. But the important thing is to get beyond this divisive, polarized thinking and recognize that we all agree that public safety and gun rights are both important and that reasonable people can come together and find the right balance, so that we can preserve our valued traditions and overcome the terrible violence that has plagued the streets of our cities.

Allahpundit says:

(Lesser informed voters probably don’t realize he’s flip-flopped at all, a fact he’s surely counting on.) Wouldn’t be the first time a politician’s maneuvered during the general election to claim the center, but of course the Messiah is no ordinary politician according to his apostles. Is any of this doing damage to his aura as the avatar of liberal Hopenchange?

See I think flipflop and Messiah are the wrong words (though I understand why you want those words to stick). Flipflopping is a noisy, jerky motion from one side to the other. But Obama is all about smoothing out all the rough spots, showing how seemingly disparate positions can be reconciled. The reason he can do it is not that he has divine powers or anything like them. He's a law professor. He's doing the law professor thing so plainly that it makes me want to get out my laptop and surf the internet or IM my friends about how bored I am.

Writes Glenn Reynolds, quoting me — and possibly implying that I'm one of the rubes. On "glamour," he links to this, from Virginia Postrel. Postrel makes a distinction between "charisma" —"a personal quality that inspires followers to embrace the charismatic leader's agenda" – and "glamour" — which "encourages the audience to project its own yearnings onto the glamorous figure."

When voters motivated by charisma disagree with the leader they've backed, they support him anyway and possibly even change their minds about the right policy course. When voters motivated by glamour disagree, they become disillusioned and angry.

But then why haven't Obama's supporters gotten mad?

I have to think psychological phenomena are far more complex. It can't be that there really is a substance "charisma" and a substance "glamour" that one can possess and that have specific, different effects on other people.

And does it really help to use those terms — with their weird roots in religion and witchcraft?

It might be better to think about the difference between a leader and a figurehead. (Obama's potential as a figurehead is much more apparent than his potential as a leader.) But I think you can get angry and disillusioned at either.

What does any of this have to do with who ought to be considered a "rube"?

I think Glenn is alluding to Obama's shot at those people in "small towns in Pennsylvania, and like a lot of small towns in the Midwest" who "get bitter [and] cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations."

The idea seems to be that what really makes you a rube is not where you live but whether your politics spring from unexamined emotions.

If that's what his gnomish concision is about, let me say that I didn't vote for Obama in the primary because I projected a dopey enthusiasm onto a glamorous blank screen. Forced to choose between Clinton and Obama, I voted for Obama — even though he stated positions that were farther from what I want than Clinton's — because I thought he had more mental flexibility and pragmatism, that he was more likely absorb and process evidence and advice and exercise sound judgment.

ADDED: Glenn, being less gnomishly concise, explicitly strikes my name from the list of possible rubes.

The Supreme Court, in a 6-3 opinion, said the church's exorcism sessions were a matter of church doctrine and were thus subject to certain, though not absolute, First Amendment religious protections....

In her original suit against the church, Laura Schubert said she suffered lasting emotional trauma in 1996 when, on two separate occasions in one week, church members held her down and "laid hands" on her while she cried, kicked, clenched her fists, gritted her teeth and made guttural noises.

The “laying of hands” and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter. “Courts are not arbiters of religious interpretation,” and the First Amendment does not cease to apply when parishioners disagree over church doctrine or practices because “it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.” Thomas v. Review Bd., 450 U.S. 707, 716 (1981). Because determining the circumstances of Laura’s emotional injuries would, by its very nature, draw the Court into forbidden religious terrain, we conclude that Laura has failed to state a cognizable, secular claim in this case. See Ballard, 322 U.S. at 86.

Unfortunately, this is precisely what the Court’s holding allows. Here, assuming all facts favorable to the verdict, members of Pleasant Glade restrained Schubert on two separate occasions against her will. During the first encounter, seven members pinned her to the floor for two hours while she cried, screamed, kicked, flailed, and demanded to be released. This violent act caused Schubert multiple bruises, carpet burns, scrapes, and injuries to her wrists, shoulders, and back. As she testified, “I was being grabbed by my wrists, on my ankles, on my shoulders, everywhere. I was fighting with everything I had to get up, I was telling them, no. I was telling them, let go, leave me alone. They did not respond at all.” After Schubert “complied with what they wanted [her] to do,” she was temporarily released. Fifteen minutes later, at the direction of Pleasant Glade’s youth pastor, a different group of seven church members physically restrained her for an hour longer. After this experience, Schubert was “weak from exhaustion” and could hardly stand.

Three days later, a male church member approached Schubert after a service and put his arm around her shoulders. At this point, Schubert was still trying to figure out “what had happened” at the previous incident, “wasn’t interested in being touched,” and resisted him. As Schubert testified, “I tried to scoot away from him. He scooted closer. He was more persistent. Finally, his grasp on me just got hard . . . before I knew it, I was being grabbed again.” Eight members of Pleasant Glade then proceeded to hold the crying, screaming, seventeen year-old Schubert spread-eagle on the floor as she thrashed, attempting to break free. After this attack, Schubert was unable to stand without assistance and has no recollection of events immediately afterward. On both occasions, Schubert was scared and in pain, feeling that she could not breathe and that “somebody was going to break [her] leg,” not knowing “what was going to happen next.”...

I agree with the Court that certain claims for emotional damages are barred by the First Amendment—if Schubert were merely complaining of being expelled from the church, she would have no claim in the civil courts. But again, this case, as it was tried, is not about beliefs or “intangible harms”—it is about violent action—specifically, twice pinning a screaming, crying teenage girl to the floor for extended periods of time. ...

The tort of false imprisonment is a religiously neutral law of general applicability, and the First Amendment provides no protection against it. Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (“[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).")

If you voluntarily become a member of a church that has a ritual that involves restraining individuals against their will when they are seen as possessed, can you sue the church for false imprisonment when it subjects you to that ritual?

IN THE COMMENTS: Amba writes:

It also reminds me of saying, if you knowingly married a man who was abusive, the state should not intervene in domestic violence.

Isn't it more like the case a person who decides to participate in sado-masochistic activities and then decides at some point that this isn't what she agreed to? In a tort suit, the issue would be the scope of consent. The problem in the Texas case was that the court thought it would require an examination of religious doctrine to determine the scope of her consent.

Chip Ahoy writes:

I should have known by the sign outside the cute little white church building that the High Octane Holy Roller Wild-Ass Aggressively Evangelical Old-World Church of Omnipresent Powerful Take-No-Prisoners God, that this might not be my style of congregation, but I decided to overlook that little signal and join anyway, and this was Texas, after all.

Jennifer asks:

Especially when you return for a service three days after they already did it to you twice?

Maybe I'm being unsympathetic but I'm straining to understand why someone would trash and scream and flail against known people for hours on end when not acting possessed would keep you physically safer and allow your physical freedom sooner?

Good observations. The screaming and crying — within the church's belief system — could have been seen as the evidence of possession. If the state says to the church, you were required to see her struggle as the reason you had to let her go, it would be saying, you are not allowed to act on your belief in demonic possession.

Joe R. says:

If she were 17 years old, I'd guess that she was being forced by her parents.

Paddy O. writes:

I was a little unsympathetic too, until I read she was 17....

My initial lack of sympathy for this as a court case was also far outweighed by my sympathy as someone interested in churchy things. In that respect this is outrageous. Because it's not about this girl at all. It's about very, very immature men and women trying to play at being super-Christians and instead being laughed at by forces natural and super-.

The girl is a victim--a victim of atrocious theology and spiritual abuse that will likely drive her away from thinking there is any comfort in churches and probably try to find comfort in less than holistic ways. Maybe not. Let's hope she is able to move on in her life, spiritually and emotionally.

June 27, 2008

Here. Every single one of those flipflops has been an improvement, in my opinion, so am I supposed to reject Obama for flipflopping? I voted for Obama in the Wisconsin primary in part because I predicted he'd turn out to be flexible and pragmatic. I do agree with Krauthammer that it's funny the way the people who fell for the Obama of the primaries — who, unlike me, actually liked those positions he was taking — are letting him get away with the flipflop. I suppose, just as I convinced myself that the real Obama was not the one I was seeing back then, they are convincing themselves that the real Obama is not the one they are seeing now.

Glenn Greenwald of Salon.com and Keith Olbermann of MSNBC are in the midst of a bitter feud....

At issue is Barack Obama's flip-flop on legislation currently pending that would update the Foreign Intelligence Surveillance Act....

In January, Greenwald reports, Olbermann delivered an unhinged rant in which he called the immunity provision a "shameless, breathless, literally textbook example of fascism"--and in case you thought he meant the nongenocidal Italian kind, he also likened proponents of immunity to "the bureaucrats of the Third Reich."...

Olbermann... rails against "fascism," then yields to it in the name of political expediency. Obama does the same thing in a more soothing manner.

In District of Columbia v. Heller, yesterday's Second Amendment decision, Justice Scalia responded to the argument that "it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed":

It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

Should we read that boldface as a statement about women's rights? Scalia uses a gender-neutral expression — those without upper-body strength — but we know that on average, women have less upper-body strength than men. To say it's enough that you can have a long gun is to put a greater burden on women, is it not?

In fact, the argument about handguns and upper-body strength is explicitly a women's rights argument in at least one briefs. Read this amicus brief from 126 Women State Legislators and Academics (PDF):

The District would like to restrict women's choice of firearm to those it gauges most appropriate rather than to allow rational women the ability to decide whether a handgun is more suited to their needs. Petitioner's Brief cites two articles from firearms magazines in which a shotgun is mentioned as appropriate for home defense. Pet. Br. at 54-55. An assembled shotgun is certainly better than nothing and could provide deterrence benefits provided it is accessible to a woman. However, most women are best served by a handgun, lighter in weight, lighter in recoil, far less unwieldy for women with shorter arm spans, and far more easily carried around the home than a shotgun or rifle. Moreover, women who are holding a handgun are able to phone for assistance, while any type of long gun requires two hands to keep the firearm pointed at an assailant....

Women are at a severe disadvantage when confronting a likely stronger male assailant. In general, women simply do not have the upper body strength and testosterone-driven speed to effectively defend themselves without help. A firearm, particularly an easily manipulable handgun, equalizes this strength differential and thereby provides women the best chance they have of thwarting an attacker. Even more statistically likely, a firearm in the hands of a threatened woman offers the deterrence empty hands and an often unavailing 911 call do not.... Even in cases in which a 911 response would be effective, an attacker in control of the situation will not allow a woman to pick up the phone to make that call.

1. I did an hour-long call-in show on Wisconsin Public Radio at 6 a.m. this morning. You can stream the audio here. We had lots of callers — and in case you're wondering how things are in Wisconsin — every single one supported gun rights.

2. Here's lawprof Randy Barnett in the Wall Street Journal, making some predictions. 1. The Second Amendment will be applied to the states via the 14th Amendment. (This issue didn't arise in the D.C. case, but "Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.") 2. "[M]ost existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed – whose aim is to impose an 'undue burden' by raising the cost of gun production, ownership and sale – would likely be found unconstitutional."

As a partisan Democrat, I confess to being relieved that the dissenters did not prevail, for the upholding of the D.C. ordinance would, in effect, have served as a massive in-kind campaign contribution to John McCain.

Just imagine what might happen if Justice Kennedy had joined his more moderate colleagues, as he did just the day before in providing the all-important fifth vote to invalidate the death penalty for rapists of children. One sudders at the prospect of Sen. McCain, or some 527group, saying the current Court both wants to protect child rapists and prevent parents from possessing handguns to defend themselves and their children against such marauders. Now all that Sen. McCain can say is that “only one vote” stands between the protection of gun rights and the ability of the state to “take away your guns.”

And he can't stand the historical analysis:

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory....

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues.

Yes, this is the convention, unfortunately, and it prevails among many commentators too.

In a radical break from 70 years of Supreme Court precedent, Justice Antonin Scalia, writing for the majority, declared that the Second Amendment guarantees individuals the right to bear arms for nonmilitary uses, even though the amendment clearly links the right to service in a “militia.” The ruling will give gun-rights advocates a powerful new legal tool to try to strike down gun-control laws across the nation.

This is a decision that will cost innocent lives, cause immeasurable pain and suffering and turn America into a more dangerous country. It will also diminish our standing in the world, sending yet another message that the United States values gun rights over human life.

See what I mean? The Times goes on to say:

Senator John McCain has said he would appoint justices like Chief Justice John Roberts and Justice Samuel Alito — both of whom supported this decision. If the court is allowed to tip even further to the far right, there will be even more damage done to the rights and the safety of Americans.

But, of course, Barack Obama said the Court got the case right. How then does the perceived wrongness of the case cut against McCain? The Times is conceding a point about Obama that he might not want to concede! It is assuming that, whatever he says about the case, he will appoint the kind of Justice who would have decided it the other way.

4. There is an immense amount of great commentary at Volokh Conspiracy: Randy Barnett ("I believe Justice Scalia signaled that regulations short of a ban should be scrutinized the way we do 'time, place, and manner' regulations of speech when he equated the Second Amendment with the First..."), Jim Lindgren (on whether the Court created a "new right"), Orin Kerr (noting that Justice Breyer "tak[es] different approaches depending on which side of the culture wars the challenged law happens to fall"), Ilya Somin (warning that "judicial recognition of a constitutional right is only the beginning of the struggle to provide genuinely effective protection for that right"), Dale Carpenter (making 7 points about the case), Eugene Volokh (noting that academic scholarship really mattered, but not as much as who appoints the Justices).

June 26, 2008

This is one of those places where the right wing is on the same page as radical feminism. I immediately thought of a poster I saw years ago in Amsterdam. This was back in the days when I carried a sketchbook instead of a camera:

And the David Stout article is nowhere to be found. Here's the URL in question. I'm hyperaware of this switch, because I just wrote a long blog post that criticized the way Stout wrote about the Supreme Court, and I expressly doubted that Linda Greenhouse would have written it like that:

... I wonder how Stout knows Scalia "clearly takes pride in his writing as well as his reasoning." Did the use of the words "frivolous" and "bizarre" somehow imply that pride or is the evidence elsewhere and we're just supposed to know it?....

Oh, no! Reading Stout (and Liptak) today, I'm nagged by the question What would Greenhouse have written? Would Linda Greenhouse have inserted commentary about Scalia pride?

Not to be outdone, Justice Stevens called the majority’s interpretation of the Second Amendment “overwrought and novel” and said it “calls to mind the parable of the six blind men and the elephant”...

Would Linda Greenhouse have imputed that competitive motivation to Stevens's choice of words? Stout's writing has something of the problem that plagued Jeffrey Toobin's book "The Nine." For narrative effect, the Court is portrayed as a psychodrama.

I'm not saying they changed it because of what I wrote. But that is curious, freakish, odd, peculiar, strange, unusual, and weird.

And Greenhouse notably and admirably avoids the Court-as-psychodrama problem.

Writes Justice Scalia, for the majority, in the D.C. guns case, accoring to David Stout's report in the NYT[UPDATE: The link no longer goes to the David Stout article, which I can't find on line at all anymore!]

Justice Antonin Scalia, writing for the majority in the landmark 5-to-4 decision, said the Constitution does not allow “the absolute prohibition of handguns held and used for self-defense in the home.”...

But the court held that the individual right to possess a gun “for traditionally lawful purposes, such as self-defense within the home” is not unlimited....

The ruling does not mean, for instance, that laws against carrying concealed weapons are to be swept aside. Furthermore, Justice Scalia wrote, “The court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”...

“The amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second clause,” wrote Justice Scalia. “The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

Not at all, Justice Stevens countered, asserting that the majority “stakes its holding on a strained and unpersuasive reading of the amendment’s text.”

Stout informs us that Scalia "clearly takes pride in his writing as well as his reasoning" and in the same sentence writes that he applied "adjectives like 'frivolous' and 'bizarre'" to the dissenting opinion.

Oh... you mean he actually used the words "frivolous" and "bizarre"? I see.

Well, then I wonder how Stout knows Scalia "clearly takes pride in his writing as well as his reasoning." Did the use of the words "frivolous" and "bizarre" somehow imply that pride or is the evidence elsewhere and we're just supposed to know it? (Or do you just not want to plug his book?)

Oh, no! Reading Stout (and Liptak) today, I'm nagged by the question What would Greenhouse have written? Would Linda Greenhouse have inserted commentary about Scalia pride?

Not to be outdone, Justice Stevens called the majority’s interpretation of the Second Amendment “overwrought and novel” and said it “calls to mind the parable of the six blind men and the elephant”...

Would Linda Greenhouse have imputed that competitive motivation to Stevens's choice of words? Stout's writing has something of the problem that plagued Jeffrey Toobin's book "The Nine." For narrative effect, the Court is portrayed as a psychodrama. [UPDATE: Since my link now goes to the Linda Greenhouse report, you can read it and answer my question! The answer is: No.]

***

Stout tells us how McCain and Obama reacted to the case:

“I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense,” Mr. McCain said in a statement, which contained a reminder that his Democratic nominee, Senator Barack Obama of Illinois, refused to join him in signing an amicus brief in support of overturning the district’s law.

Indeed, Mr. Obama’s view, expressed in a statement, was more nuanced than Mr. McCain’s.

More nuanced!

“I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures,” Mr. Obama said, predicting that the ruling would provide needed guidance for lawmakers.

Is that nuance or the same point Scalia acknowledged, that the rights don't preclude regulation? What I think is telling in Obama's statement is the mismatch between concern about "crime-ravaged communities" and "violence" on the one hand and, on the other, the desire for "safety measures."

The law at issue [in Davis v. F.E.C.] imposed special rules in races with candidates who finance their own campaigns. Those candidates are required to disclose more information, and their opponents are allowed to raise more money.

... But the millionaire’s amendment, part of the 2002 McCain-Feingold campaign finance law, is based on a different rationale: that of compensating for the additional financial resources available to candidates willing to spend their own money....

The law was a response to Supreme Court rulings that forbid limits on the amount that candidates can spend on their own behalf. But Justice Alito wrote that the legislative response was unconstitutional because it “imposes an unprecedented penalty on any candidate who robustly exercises” free speech rights guaranteed by the First Amendment. Rich candidates, Justice Alito said, must “choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.”

I approve. Liptak quotes lawprof Richard Pildes:

"It’s deeply dangerous for Congress to change the ground rules for individual races based on a judgment about what’s fair.

"[T]he opinion is written in a way that portends an unsympathetic response to campaign finance regulations to go anywhere beyond the existing structure."

"The 'Millionaire's Amendment' was not part of the original legislation, and was added on the floor during debate," McCain said in a statement...

“Today's Supreme Court decision in Davis v. FEC does not affect the Court's landmark ruling in McConnell v. Federal Election Commission upholding the constitutionality of the soft money ban contained in BCRA. That ban is at the core of the reforms I worked for in the long bipartisan fight to pass campaign finance reform."

So, he's not taking responsibility for the provision the Court held unconstitutional, because it wasn't part of the original plan? But amendments to original plans matter. For example, the First Amendment to the United States Constitution matters.

And McCain is pleased with McConnell, but that case came out the way it did because of Justice O'Connor's vote, and her replacement Samuel Alito wrote today's opinion.

McCain is running for President saying that he will appoint Supreme Court Justices like Alito.

I'm still trying to reconnect with my brain after getting pumped full of morphine this morning. (At the hospital, for a test, which I passed.) I was hoping for the side effect of a pleasurable drug experience, but it put me right to sleep. I woke up, got escorted home, and did nothing more unusual than curl up in bed and sleep for 3 hours. I would make a terrible druggie. Quite aside from the fact that I wouldn't do anything illegal, I wouldn't be any fun at all.

In less than 2 hours, the Supreme Court will finally tell us what the Second Amendment means. The best place to monitor the news is the SCOTUSblog live-blog. I won't be here to comment on the case until almost noon, so please start the conversation without me.

I've been reading things for the last 2 hours and haven't found anything bloggable. I'm beginning to think it's not the news. It's me. I'm having a medical test that demands that I not drink anything this morning. (A routine test.) And I really want some coffee. This blog — I'm beginning to think — is fueled by coffee. Without coffee... I've got nothing. I'll have morphine before I have my next cup of coffee. Meanwhile, the Supreme Court is going to give us the answer on guns today. Collective right or individual right? I'll put up a post so you can talk about it without me. I'll be back here eventually... with, I'm told, impaired judgment (from the morphine). Yet my brain is already impaired from lack of coffee....

UPDATE: I'm back. I checked the news on my iPhone before I went in for the procedure and saw how them D.C. guns case came out. Now, I want to catch up on the news, but should I read with impaired judgment? I might get some crazy ideas.

UPDATE 2: I wrote the first update 3 and a half hours ago and haven't accomplished anything since, even though I drank black coffee at the hospital and coffee and milk as soon as I got home. While you were here reading this and maybe mocking me for writing "them D.C. guns case," I was not off doing crazy things in a morphine-induced craziness. I mean I did one thing rash with my impaired judgment. I got a telephone call from Wisconsin Public Radio asking me to go on the Joy Cardin Show tomorrow morning at 6 to talk about the D.C. guns case and I said yes. So then I looked up the case on line and read one sentence, then decided watching some TV discussion of it [was] all I could handle. I curled up in bed, turned on the TV, and proceeded to sleep for 3 hours. So that's the truth about me. You can [see] I wouldn't make a good drug-partying type. My impulse is to conk out. But I'm still on the show tomorrow. That phone call wasn't some druggie dream. I'd better read the case and collect my thoughts. And I really will blog about it.

June 25, 2008

"As a father, I believe there is no more sacred responsibility in American society than that of protecting the innocence of our children. I have spent over twenty-five years in Congress fighting for stronger criminal sentences for those who exploit and harm our children. Today’s Supreme Court ruling is an assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime. That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing."

"I have said repeatedly I think the death penalty should be applied in very narrow circumstances, for the most egregious of crimes... [But] I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well defined circumstances, the death penalty is at least potentially applicable, that does not violate our Constitution."

So, Obama has (cleverly or sincerely) deprived McCain of an issue, it seems. And yet the most relevant question is Supreme Court appointments. You might think that it's rather predictable that Obama, given the opportunity to nominate a new Justice, will choose someone who would almost surely have joined today's majority. Ask him: You've said you oppose the Supreme Court's decision in Kennedy v. Louisiana, but does that mean you will try to pick Justices in the mold of Roberts, Scalia, Thomas, and Alito. See? You don't need to ask. You already know the answer. But don't be too confident that McCain would choose Justices who would have joined today's dissent. I wouldn't bet on that either.

I'm dubious about the manufactured PR that comes in the form of a report about what's in some politician's iPod. But whether these are really the songs the person listens to or not, it's at least a list of what the campaign wants you to think he likes, and that means something. So let's read the report on Obama iPod — his oPod.

• Bob Dylan – "at least 30 tracks", including Maggie's Farm, which is one of Mr Obama's favourites "for the political season... it speaks to me as I listen to some of the political rhetoric". In the song, Dylan sings about trying to be himself, "but everybody wants you to be just like them".

Does it speak to his "head full of ideas that are drivin' [him] insane"? Do you believe "Maggie's Farm" is one of his favorites, or do you think they just tried to find a political song that had some appropriate rhetoric? The character in the song is perceiving what's wrong with the farm (the country) and is looking for a change.

• Stevie Wonder – "Stevie had that run with Music of My Mind, Talking Book, Fulfillingness' First Finale and Innervisions, and then Songs in the Key of Life. Those are as brilliant a set of five albums as we've ever seen."

Can't go wrong with Stevie.

• The cellist Yo-Yo Ma.

Uh, better put something classical in there.

• Blues legend, Howlin' Wolf.

Put some blues.

• Bruce Springsteen – "Not only do I love Bruce's music, I just love him as a person". Mr Obama says he has met him, and calls him The Boss.

Unbought and unbossed.... except by The Boss.

• The late-1970s disco outfit Earth, Wind and Fire, famous for Boogie Wonderland and September.

This is the one I'm most likely to believe he really likes, because it's from the era when his tastes were probably formed and it's hard to think of a good reason to fake liking this. So, boogie:

The title of the episode is "Michelle Obama’s Arms" and the topics are:

Remembering George Carlin (04:55)Does the president have to wear a suit? (09:00)Michelle Obama’s sleeveless look (08:45)Cindy McCain’s forcibly informal photo shoot in Vogue (07:39)In defense of Robin’s early choice to write about Hillary’s cleavage (06:07)“Sex and the City”: just porn for women? (17:45)

Note that we revisit Robin's look into Hillary's cleavage — which, as I say in the video, has gone down in the history of sexism.

ADDED: Hey! I got to be on the left for this one. That hasn't happened in a while. Happened way back when I diavlogged with Jonah Goldberg. Anyway, let me embed something. I think we talked about sleeves for 5 minutes. Sleeves! Ha ha. Let's see you be interesting about sleeves for 5 minutes.

"It does not follow, though, that capital punishment is a proportionate penalty for the crime."

So writes Justice Kennedy in Kennedy v. Louisiana. Searching for "evolving standards of decency," Kennedy expresses concern about the sheer number of crimes that would be subject to the death penalty:

In reaching our conclusion we find significant the number of executions that would be allowed under respondent’s approach. The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period.

Why isn't the high incidence of child rape a reason to up the penalty so that fewer children will be raped? Now that the death penalty for child rape has been held unconstitutional, will we see the number of rapes increase?

With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem with respect to child sexual abuse. ...

The experience of the amici who work with child victims indicates that, when the punishment is death, both the victim and the victim’s family members may be more likely to shield the perpetrator from discovery, thus increasing underreporting....

In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime.... It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all.

So isn't this the sort of balancing that is normally left to legislative choice? Kennedy says it's still a factor that the Court should take into account in analyzing whether the death penalty is constitutional.

ADDED: In dissent, Justice Alito (joined by the Chief Justice and Justices Scalia and Thomas) emphasizes the breadth of the decision:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ”

AND: Alito notes that the Court's decision in Coker v. Georgia (invalidating the death penalty for the rape of an adult woman) created uncertainty and impeded the states development of the law and distorted the evidence of "consensus":

When state lawmakers believe that their decision will prevail on the question whether to permit the death penalty for a particular crime or class of offender, the legislators’ resolution of the issue can be interpreted as an expression of their own judgment, informed by whatever weight they attach to the values of their constituents. But when state legislators think that the enactment of a new death penalty law is likely to be futile, inaction cannot reasonably be interpreted as an expression of their understanding of prevailing societal values.

The majority is really imposing its own "evolving standards of decency" to the question, Alito says. In this context, he questions whether it is"really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist.""

Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g., Tison v. Arizona, 481 U. S. 137 (1987) . In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

(Wouldn't anyone voting with today's majority have voted with the dissent in Tison?)

... I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists—predators who seek out and inflict serious physical and emotional injury on defenseless young children—are the epitome of moral depravity....

Alito elaborates the harm.

It's important that the majority also took the harm very seriously. This was not like Coker, where the Court was clueless enough to write, about the 16-year-old "adult" victim: "Mrs. Carver was unharmed."

Justice Kennedy does not gloss over the horrific harm to the child:

Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death....

An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery....

[T]he victim’s fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, “life may not be nearly so happy as it was” but it is not beyond repair. Rape has a permanent psychological, emotional, and sometimes physical impact on the child.... We cannot dismiss the years of long anguish that must be endured by the victim of child rape.

Nevertheless, in Kennedy's view, capital punishment is not "proportionate" to the crime in light of "evolving standards of decency that mark the progress of a maturing society."

It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment....

[We] insist upon confining the instances in which capital punishment may be imposed....

As it relates to crimes against individuals, ... the death penalty should not be expanded to instances where the victim’s life was not taken....

[T]here is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other....

It's very hard to find any argument about the depravity of this criminal act. What I see in Kennedy's opinion is mainly opposition to the death penalty and a fear of expanding it into a new area where it would need to be constrained by the kind of "narrowing aggravators" that restrict the death penalty in murder cases. Kennedy is particularly concerned that the crime of child rape "will overwhelm a decent person’s judgment," that this crime — more than murder — will make juries irrational and arbitrary. In any case, he tells us, the process of juries evaluating aggravating factors is well established. It's one thing to accept that, quite another to extend the process into a whole new area.

So, for the death penalty and child rape, juries cannot be trusted, and legislatures cannot be trusted. This is one decision that the Court has seen fit to place in the judicial domain.

Well, the insolent fanboy has won the sympathy of at least one law blogger, but really... You presume to take up the Justice's time at a book signing and you haven't got a copy of his new book? You bring his 1997 book to get an autograph? I mean, I can see how an unsophisticated person might think it's okay to try that, but when it didn't work you should have felt chastened. Instead, you write a long letter — with typos and references to "Star Trek" and Jimmy Carter — scolding Justice Scalia?

I presented my book [A Matter of Interpretation], you took it, looked at the front cover, and gruffly said, "This is not my book. I won't sign this book." The book was pushed aside and you waived [sic] me away.

At first I thought you were joking. You had to be. Who doesn't sign their own book at a book signing? Apparently you don't. As the massive crowd poured in I tried to show you that the cover said in large bold print: 'BY ANTONIN SCALIA.' You were having none of it.

The event was free for me because I am a law student. In fact, I only went because it was free. I had class that night but skipped because this was going to be so much better than learning about informal rulemaking procedure in Administrative Law. I intended to buy your new book [Making Your Case] when I had the money. For now, I owned this book. It had inspired me. It was the one I wanted signed. And again, you'd already made the royalties off of it when I purchased it. So what could be the harm?...

I think it is important to note that you are a public servant. While you are not a member of the political branches, you nonetheless are on the public pay roll. It should be an honor for you to be admired so much that people even want your signature. But you have become arrogant and aloof in your marble castle up on the Hill.

If your intention was to sell book you have a funny way of going about it. Now I will never buy your new book, whereas I was looking forward to it before. I will tell everyone I speak to on the subject of Originalism and the Court how big of a jerk you were. I am not famous but I am well respected by those who know me. Any books you sell will not be from my recommendation.

But the worst part of it is that from now on and for the rest of my life I will never think of you the same way. From now on you will not be the lovable jerk you come off as. Instead you will be like a philosopher king growling at his peon subject.

Earlier in the evening you wouldn't even take a picture with me. I understood because of the onslaught of photos that would inevitably follow. I had the honor of meeting Justice O'Connor, who was speaking at my school, a few months ago. After the event she was in a hurry to be somewhere. I asked if I could have a picture with her. Though she was clearly put out she took thirty seconds out of her life to do something nice for an admirer. In my life this has been true of Lenard [sic] Nimoy (Spok [sic] from Star Trek), Stan Lee (creator of Marvel Comics), Senator Cornyn of Texas, and former President Jimmy Carter. They were all busy people and they took a few seconds to do something nice for a fan and member of the public. There are stories John Wayne would talk to his fans for hours while his food got cold. What can I say? You're no Duke.

I'm sure you won't care about me or my letter. You may not even see it. If you do you'll probably only correct the grammar and then throw it away. You'll see yourself as the victim of a slanderous smear campaign by a looser [sic] fan who can't afford a book. But you brought it on yourself by not taking a few seconds to sign a book you wrote at a book signing.

I like this comment at the second link: "This guy is a fan of Scalia *and* Jimmy Carter??? Something doesn't smell right." Yes, think about it. People who don't like Scalia could wreck his signings by bringing the wrong book (and trying to provoke a reaction by babbling and pointing to his name on the cover). I'm picturing hordes of Scalia haters deliberately screwing up his signings: Okay, when you get to the front of the line, you pull out your downloaded copy of his dissent in Lawrence v. Texas, tell him how brilliant and inspiring you found it, and beg him to autograph it.

UPDATE: The Court limits the punitive damages in the Exxon case to $507.5 million. (The court below had awarded $2.5 billion). In Kennedy v. Louisiana, the Court rejects the death penalty for child rape (where "the defendants' acts were not intended to cause death").

AND: Here's the Kennedy opinion (PDF). (It's doubly "the Kennedy opinion" in that it's the name of the case and of the Justice writing it.) It's a 5-4 decision with a Roberts an Alito dissent, joined (predictably) by Scalia, Thomas, and Alito Roberts.

Now, I actually think that John Cornyn ad is terrific, though I find it hard to imagine the impression it would make on people who were unfamiliar with the original Jimmy Dean song "Big Bad John." Or does everyone know that song? "Then came the day at the bottom of the mine, when a timber cracked and men started crying...." I don't know if John Cornyn is ready to grab a sagging timber and stand alone like a giant oak tree and save crying men from a mine cave-in — or accomplish the congressional analogue of Big Bad John's heroic feat — but I love the invocation of that amazing ode to masculinity. "The Daily Show" did a fabulous job of lampooning Cornyn's ad — but, of course, it was already suffused with charming humor. (By the way, here's a tribute to John Wayne that uses "Big Bad John.")

And let's talk about the MoveOn.Org ad that begins the "Daily Show" clip. That was not suffused with humor. That was meant to hit you in the gut — and you either merge with the don't-take-my-baby message — as some members of the "Daily Show" audience audibly do — or you're disgusted and outraged at the low blow.

June 24, 2008

In case you're squinting at the graphic in the previous post and wondering about the "Nail's Tails" artist, I thought I'd put up this picture of the sculpture — by Donald Lipski — which stands outside Camp Randall, the Wisconsin Badgers football stadium. I happened to take a picture of it the other day. I used iPhoto to make it black and white and then to "boost color," which gets you to a much richer brown than making it "sepia." The original sculpture — which you can see by the linked article many people hate — is stark white. Click here for a larger version of my picture. It's an obelisk, eroded to reveal a core composed of footballs. Why don't people like it? Is it because of something suggested by naming it after the artist's roommate? Now, the roommate's name was "Nails," so I have a problem with the placement of the apostrophe in the title "Nail's Tails," and I hate the title, but forget the title. Pretend it's called Our Football Obelisk. You'll have to learn to like it.

Can it be "cruel and unusual" to serve a prisoner nothing but a nutrition loaf? Maybe you don't think the answer depends on how bad it tastes, but in case you do, here's Arin Greenwood taste test. He cooks up the Illinois, Vermont, and 2 versions of the California nutraloaves and swerves serves them to a bunch of "friends and relatives" (half of them lawyers):

I picked some off my plate with my fingers. It tasted a bit like vegetarian chili. Not bad. My cousin Steve, a mortgage broker who had sampled the California loaf with meat, disagreed. "It's what you imagine Alpo tastes like," he said. Lori said she liked it and said she'd even consider making it again, though she'd use more spices. Lee, a lawyer and her husband, asked her not to....

As the night went on, and wine washed away the taste of loaves, we discussed the Eighth Amendment and how bad food would actually have to be in order to be unconstitutional....

This was an okay article — good enough to blog — but I'd much rather see this material in the form of a film documentary. There is a dimension here — the social setting and attitudes of Washington lawyers and others — that seems fascinating, but that Greenwood barely lets us glimpse. How did they really talk about law and prison and their own fussy tastes?

The A.V. Club story of the Nutraloaf stunt is more entertaining, because it has more unappetizing photos and even a little video! ... They all agreed that it was gross, so this Slate version could've been much more Slate-y if they'd decided it was actually delicious.

UPDATE: Thanks to SCOTUSblog for the thrilling presentation of the news. I love the way the live-blog automatically updates — no refreshing of the page needed — and makes that hot-off-the-press typing sound — calling me back from whatever page I've wandered off to.

Now, I was just about to say that today's cases aren't the exciting ones we've been waiting for when the live-blog typed out this, from Tom Goldstein:

The only opinion remaining from the March sitting is Heller. The only Justice without a majority opinion from that sitting is Justice Scalia.

So the eagerly awaited gun rights case is almost surely going to be written by Justice Scalia.

[A] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

The third case, Sprint Communications v. APCC Services, is about standing to sue in federal court, specifically whether assignees of claims have standing. Article III of the Constitution requires the plaintiff in federal court to have a concrete and particularized injury that is fairly traceable to the defendant and likely to be redressed by the requested relief. In this case, the relief would go to the assignor of the claims, not to the plaintiff, the assignee. So was the "redressability" prong of the standing requirement met? Justice Breyer, writing for the majority and answering the question yes, responded to the dissenters this way:

The dissent argues that our redressability analysis could not be more wrong,” because “[w]e have never approved federal-court jurisdiction over a claim where the entire relief requested will run to a party not before the court. Never.” Post, at 5 (opinion of ROBERTS, C. J.). But federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians ad litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; executors bring suit to benefit testator estates; and so forth.

The Roberts dissent, joined by Justices Scalia, Thomas, and Alito, frets about the loosening of standing requirements but takes some comfort in Justice Breyer's stress on precedent. Roberts:

[P]erhaps we should heed the counsels of hope rather than despair. The majority, after all, purports to comply with our Article III precedents, see ante, at 16–18, so those precedents at least live to give meaning to “the judiciary’s proper role in our system of government” another day. Raines, 521 U. S., at 818. What is more, the majority expressly and repeatedly grounds its finding of standing on its conclusion that “history and precedent are clear” that these types of suits “have long been permitted,” ante, at 5, and that there is “a strong tradition” of such suits “during the past two centuries,” ante, at 16, 19. This conclusion is, for the reasons we have set forth, achingly wrong—but at least the articulated test is clear and daunting.

Achingly wrong. That's a new one. Really, I did a LEXIS search of Federal & State Cases, combined, and no one has ever written "achingly wrong" before. But Roberts's point is: The majority read the precedents badly, but at least it showed it cared about precedent.

What a terrible loss. You know I thought he was the best living comedian. We were just talking about that here — last April. I've loved him since the 1970s. There are decades-old routines that spring to mind immediately as the most brilliant comic riffs I've ever heard — the one about all our "stuff" and the comparison between football and baseball (and golf).

"That's the whole meaning of life: trying to find a place for your stuff."

And here's the football/baseball one:

When someone dies, maybe you think about religion and the afterlife. Here's what George Carlin thought of such things:

The text of the Supreme Court case includes the FCC's transcript of the version that got played on the radio:

The big one, the word fuck that's the one that hangs them up the most. [']Cause in a lot of cases that's the very act that hangs them up the most. So, it's natural that the word would, uh, have the same effect. It's a great word, fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it's easy. Starts with a nice soft sound fuh ends with a kuh. Right? (laughter) A little something for everyone. Fuck (laughter) Good word. Kind of a proud word, too. Who are you? I am FUCK. (laughter) FUCK OF THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE MOUNTAIN. (laughter) It's an interesting word too, [']cause it's got a double kind of a life - personality - dual, you know, whatever the right phrase is. It leads a double life, the word fuck. First of all, it means, sometimes, most of the time, fuck. What does it mean? It means to make love. Right? We're going to make love, yeh, we're going to fuck, yeh, we're going to fuck, yeh, we're going to make love. (laughter) we're really going to fuck, yeh, we're going to make love. Right? And it also means the beginning of life, it's the act that begins life, so there's the word hanging around with words like love, and life, and yet on the other hand, it's also a word that we really use to hurt each other with, man. It's a heavy. It's one that you have toward the end of the argument. (laughter) Right? (laughter) You finally can't make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck. (laughter) Fuck you and everybody that looks like you. (laughter) man. It would be nice to change the movies that we already have and substitute the word fuck for the word kill, wherever we could, and some of those movie cliches would change a little bit. Madfuckers still on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you'll fuck that engine again.

Hey, I love the "[']." Try to do a Carlinesque riff on [']. Not easy, is it?

And God bless Justice Brennan, who dissented in Pacifica:

My Brother STEVENS, in reaching a result apologetically described as narrow, ante, at 750, takes comfort in his observation that "[a] requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication," ante, at 743 n. 18, and finds solace in his conviction that "[t]here are few, if any, thoughts that cannot be expressed by the use of less offensive language." Ibid. The idea that the content of a message and its potential impact on any who might receive it can be divorced from the words that are the vehicle for its expression is transparently fallacious. A given word may have a unique capacity to capsule an idea, evoke an emotion, or conjure up an image. Indeed, for those of us who place an appropriately high value on our cherished First Amendment rights, the word "censor" is such a word. Mr. Justice Harlan, speaking for the Court, recognized the truism that a speaker's choice of words cannot surgically be separated from the ideas he desires to express when he warned that "we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." Cohen v. California, 403 U.S., at 26.

They don't write them like that anymore. They don't even say "My Brother Stevens" anymore. They couldn't bring themselves to say "My Sister O'Connor," I guess, so they had to stop saying "My Brother Stevens."

Was Carlin political? Here's what he said back in 2004 when Tim Russert (of all people) asked him "Do you vote?":

No, I don't. No. I voted up to McGovern. I feel, actually, a little purer, a little more detached emotionally from it. I really have no stake. If you dropped me from an airplane, I would come down left of center, because I believe more in humans than I do in property. But in terms of the minor machinations and the way they put these things together, I've no interest.

He was on Russert's show promoting his book "When Will Jesus Bring the Pork Chops?" On the longest 1-day solo drive I ever took — from Austin, Texas to Madison, Wisconsin — I listened to Carlin read "When Will Jesus Bring the Pork Chops?"

I have a problem with the Ten Commandments. Here it is: Why are there ten? We don't need that many. I think the list of commandments was deliberately and artificially inflated to get it up to ten. It's clearly a padded list...

When these guys were sittin' around the tent makin' all this up, why did they pick ten? Why ten? Why not nine, or eleven? I'll tell you why. Because ten sounds important. Ten sounds official. They knew if they tried eleven, people wouldn't take them seriously. People would say, "What're you kiddin' me? The Eleven Commandments? Get the fuck outta here!"

I'm really sorry to see this man go. He worked long and hard so many years, making us laugh, bringing us enlightenment:

Mr. Carlin is constantly scribbling notions down in a notebook or recording them on a small voice recorder, and he spends most of his time typing, organizing and reorganizing his ideas in a library of 2,300 files he keeps on his computer — raw material he may someday forge into actual jokes, monologues or material for his books. And as soon as he has recorded a new HBO routine, he begins cycling in fresh material, so that over the course of two years, his entire routine is replaced, and he's ready to record another.

"It's like a sock," Mr. Carlin said. "I darn the sock so much that none of the original material is left. It's the same sock — it's my show — but the old material is gone."

"I have no hobbies and I have no leisure activities," Mr. Carlin added. "My greatest joy is working at the computer with my ideas."

June 22, 2008

Quite apart from the hit we may take in the workplace — compared to men who have children and men and women without children — do we bear a greater burden because we worry and stress out more over the risks to our children?

Ha ha. I love the bit at the end about students writing exams in terms of how they feel. I've noticed for years that students have substituted the word "feel" for "think" when it's glaringly inappropriate — as in: Justice Scalia feels that the Constitution does not protect the right to sodomy.